In Dixson v Waterways at Bay Pointe Home Owners Assn., Inc., the Appellate Division, Second Department reversed the summary judgment dismissal of plaintiff’s injury claim under Labor Law § 241(6).
The court held that plaintiff, who was injured while power washing buildings in preparation for painting them, was indeed engaged in a specifically enumerated activity under the relevant provision of the Industrial Code, namely, 12 NYCRR § 23-1.4(b)(13).
“Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting all areas in which construction, excavation or demolition work is being performed.”
Industrial Code Section § 23-1.4(b)(13), in turn, defines “construction work” as including all work “performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures.” (Emphasis added.)
Defendants lost because they failed to show that plaintiff was not engaged in a specifically enumerated activity under 12 NYCRR § 23-1.4(b)(13).
Rather:
Painting is an activity enumerated under that provision, and the power washing performed here was in preparation for, and a contractual part of, the painting work. Accordingly, the power washing did not constitute “routine maintenance” excluded from the ambit of Labor Law § 241(6), but rather, constituted surface preparation, an integral part of the painting process contemplated by the parties.
Therefore, the trial court was wrong to dismiss plaintiff’s Labor Law § 241(6) cause of action.